Be ready to act fast when industrial action strikes

Are we returning to the bad old days of endless industrial disputes, walkouts and wildcat strikes? You may think so, given all the publicity the Prison Service strike has generated.

It is a clear example of the power that can be exerted by unions and their members and the impotence of employers when it comes to applying the complex, but often nebulous, concepts of the Trade Union and Labour Relations (Consolidation) Act 1992, which governs this area of the law. On the one hand, this is a victory for workers seeking action, and on the other, a descent into mob rule.

Statistics

Official figures from the Office for National Statistics back up the impression that industrial action is on the increase. The number of working days lost to industrial action in 2006 showed a significant increase on 2005, from 157,000 to 755,000. The number of industrial disputes in 2006 was 158 – the highest since 2001, when the figure was 194. And this trend looks set to continue in 2007.

Yet this all comes at a time when trade union membership is in significant decline. Figures published in the Department of Trade and Industry report on union membership show that in 2006, trade union membership suffered the largest annual percentage decline since 1998. Union membership in the public sector has, however, seen limited growth.

Prison prohibition

The prison officer strike was an unusual situation. From 1994 until 2005, prison officers were subject to a statutory prohibition on taking industrial action. The Labour government repealed the ban in 2005, but on the condition that the Prison Officers Association (POA) entered into a legally enforceable no-strike agreement, known as the Joint Industrial Relations Procedural Agreement (JIRPA).

Now the POA has given notice to terminate the JIRPA, which may lead the government to reintroduce legislation prohibiting prison officers from taking industrial action. However, such a move would be likely to be challenged by the TUC, which argues that prohibitions on strike action are a breach of international labour standards.

So will this set the scene for mass wildcat action? Probably not. Most unions have the ability to call for strike action, and the threat of this is usually enough to bring the parties back to the table. In addition, most unions operate in an environment where economic loss arising from unlawful action can be quantified, and therefore a suit for damages issued, attacking union funds. This is unlikely to be the case in a public service context, because it is so difficult to quantify financial loss.

Ironically, the government may therefore be well advised to drop the JIRPA, because it is then likely to receive at least two weeks’ notice of action, allowing preparations to be made. The alternative will be to risk a further flagrant breach of the law, begging the question: what will the government do then? Dismiss and/or sue the officials? Dismiss some or all of the striking officers?

The latter is a practical non-starter, and the former is likely to cause further mass action. The government may have to take one step back and then consider alternative methods of dispute resolution, which can be written into an agreement.

Lessons

The prison officer strike demonstrates the need for employers to react quickly and decisively when industrial action is threatened. Although unions have statutory protection where industrial action is “in con­­tem­plation or furtherance of a trade dispute”, that protection is lost where the union takes official action without first balloting the workers in accordance with the detailed ballot rules, or fails to give the employer proper notice of the action.

If industrial action is unlawful, then those participating and organising it can be prevented from pursuing the action by an injunction and/or employees selectively dismissed without recourse to an unfair dismissal claim. More than in any other area of employment law, time is of the essence for employers when formulating their response, and plans should be made as soon as there is a hint of unlawful action.